Chandranandan @ Shaji Pulickal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 07TH DAY OF SEPTEMBER 2020 / 16TH BHADRA, 1942** **Crl.Rev.Pet.No.447 OF 2009** **AGAINST THE JUDGMENT IN CRA 327/2007 DATED 30-07-2007 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ALAPPUZHA** **AGAINST THE JUDGMENT IN SC 18/2003 DATED 16-03-2007 OF ASSISTANT SESSIONS JUDGE, CHERTHALA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **CHANDRANANDAN @ SHAJI PULICKAL CHIRA VEEDU, WARD NO.8, MARARIKULAM NORTH PANCHAYATH,, MARARIKULAM NORTH VILLAGE, CHERTHALA TALUK.** **BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA EXCISE INSPECTOR, CHERTHALA RANGE THROUGH, THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.08.2020, THE COURT ON 07.09.2020 PASSED THE FOLLOWING:** Crl.R.P.No.447/2009 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.447 of 2009 ----------------------------------------------Dated this the 7[th] day of September, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C.No.18/2003 on the file of the Court of the Assistant Sessions Judge, Cherthala. 2. The prosecution case is that, on 24.04.2000, at about 13.00 hours, at the road near the church in Ward No.8 of Mararikulam North Panchayat, PW1 Excise Circle Inspector found the petitioner/accused in possession of a can containing three litres of arrack. 3. The trial court framed charge against the accused for the offences punishable under Sections 55(a) and 8 of the Abkari Act. The accused pleaded not guilty to the offences and he claimed to be tried. Crl.R.P.No.447/2009 3 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P5 documents and MO1 material object. DW1 was examined on the side of the accused. 5. The trial court found the petitioner/accused guilty of the offences punishable under Sections 55(a) and 8 of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months for the offence under Section 8 of the Abkari Act. No separate sentence was awarded for the offence under Section 55(a) of the Abkari Act. 6. Aggrieved by the order of conviction and sentence made against him by the trial court, the accused filed Crl.A.No.327/2007 before the Court of Session, Alappuzha. The appellate court confirmed the conviction as well as the sentence against the accused and dismissed the appeal. 7. Aggrieved by the concurrent verdicts of guilty, conviction and sentence made against him by the courts below, the accused Crl.R.P.No.447/2009 4 has filed this revision petition. 8. Heard. Perused the records. 9. PW1 is the Excise Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 was the Preventive Officer who was in the excise party led by PW1. His evidence corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 10. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P3 is the chemical examination report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid contained 31.70% by volume of ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and the judgments of the courts below, I find it difficult to sustain the conviction entered against the petitioner. The reasons are as follows. Crl.R.P.No.447/2009 5 13. PW1 has given evidence that he seized a can containing three litres of arrack from the possession of the accused and that he took sample of the liquid from the can in a bottle and that he affixed seal on the sample bottle. He has also given evidence that he produced the sample bottle and the can at the Excise Range Office, Cherthala. 14. PW1 has stated on cross-examination that it was his personal seal which was affixed on the sample bottle. This fact is not mentioned in Ext.P1 seizure mahazar. The specimen impression of the seal is also not seen affixed on Ext.P1 mahazar. 15. PW6 was the Assistant Excise Inspector before whom the can and the sample bottle were produced by PW1. PW6 has deposed that he produced the material objects before the court as per Ext.P5 property list. He has stated on cross examination that he had prepared and submitted the requisition (forwarding note) in the court for forwarding the sample for analysis. 16. Copy of the forwarding note, allegedly prepared by PW6, for sending the sample for analysis was not marked in Crl.R.P.No.447/2009 6 evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. But, PW1 has not given evidence that he had produced specimen of the seal affixed on the sample bottle at the Excise Range Office. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). 17. Absence of the copy of the forwarding note in evidence means absence of evidence connecting the sample allegedly drawn at the spot of the occurrence from the liquid seized from the possession of the accused and the sample that tested in the laboratory. The specimen of the seal affixed on the bottle containing the sample provided in the forwarding note is the guarantee regarding the authenticity of the sample which was Crl.R.P.No.447/2009 7 sent for chemical analysis and which was tested in the laboratory. 18. In the aforesaid circumstances, there is no assurance that the very same sample allegedly taken by PW1 at the spot of the occurrence was forwarded for analysis. It follows that there is also no assurance that Ext.P3 chemical analysis report relates to the very same sample allegedly drawn by PW1 at the spot of the occurrence. 19. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related ( See **Vijay Pandey v. State of U.P: AIR 2019 SC 3569).** 20. The above mentioned vital aspects have not been properly taken into consideration by the courts below while appreciating the prosecution evidence. In such circumstances, conviction entered against the petitioner/accused cannot be sustained. 21. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused Crl.R.P.No.447/2009 8 by the trial court under Sections 55(a) and 8 of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offences and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge